Justice Anne Mactavish ruled in February that the federal ministers of both the environment and fisheries have broken the law under the Species at Risk Act (SARA). Five groups, including the David Suzuki Foundation, Greenpeace Canada and the Sierra Club of British Columbia, brought the court challenge with representation by Ecojustice. They cited the lack of response to threatened species, specifically Pacific humpback whales, marbled murrelets, nechako white sturgeons and southern mountain woodland caribou. The case resulted in a finalized recovery strategy for the Pacific humpback.

But just two months after the ruling, the recovery plan has been rendered obsolete. On April 19, 2014 the Government of Canada announced its proposal to declassify the humpback whale from ‘threatened’ to ‘species of concern’ – a decision whose political considerations are fairly easy dots to connect.

The Government of Canada announced its proposal to declassify the humpback whale from ‘threatened’ to ‘species of concern’

Clause 42 of SARA requires a completed recovery strategy within one year of a species being listed as endangered. For the four species identified by Ecojustice, statutory deadlines were missed by up to six and a half years. Those species were chosen as the focus of the lawsuit because an approval of the proposed Northern Gateway pipeline and its associated tanker traffic would affect the species’ habitats. The absence of recovery strategies meant that important information concerning potential impacts was missing from the National Energy Board’s approval hearings. The declassification of the humpback whale, however, means that prohibitions under SARA have changed, and its habitat is no longer protected.

Two large threats to Pacific humpback population recovery are toxic spills and vessel traffic. The proposed Northern Gateway tanker routes through their critical habitat would be hard to justify if the species were still threatened. The Harper government’s declassification has dissolved a major hurdle that could have been used to block pipeline approval. It has also allowed three additional years to create a species management plan, which provides much less stringent protection than the scuttled recovery strategy.

The reassessment is based on information from an independent scientific advisory group, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), which considers the declassification a success story. Despite a lack of long-term-trend data, COSEWIC estimated the humpback population had grown by more than 50 per cent over the last three generations. As a species of concern, the whales are to be monitored regularly and reassessed periodically.

Ecojustice has taken the federal government to court at least six other times since 2006 over delayed recovery strategies. There are no clear penalties for a government that chooses to take no action despite a specific mandate. The Living Oceans Society (another group involved in the February court challenge) has set up an initiative that urges the public to contact the SARA program management director to demand additional protection of the Pacific humpback’s habitat.